Private Property
Matthew Prensky · September 17, 2023

On this day 236 years ago, our Founding Fathers signed the U.S. Constitution, creating a government founded on the principle of checks and balances. However, that system doesn’t work if one branch of government isn’t willing to check the power of the others. More than two centuries later, the Institute for Justice (IJ) works within the courts to uphold our liberties and raise awareness about the importance of having a judicial system that protects our rights. 

When it comes to justice and fairness, the Constitution guarantees every American certain rights, such as the right to due process of the law, or the right to be given their day in court in front of a jury of their peers. Importantly, the Constitution also outlines the significance of judicial independence and oversight through the creation of a federal judiciary under Article III.  

It’s important to acknowledge and protect these rights, because they’re not always respected by the government. For example, Danny and Diana Barbee’s small masonry business is at risk because the U.S. Department of Homeland Security is fining their company, ProCraft Masonry, $31,000 over some alleged paperwork errors. But rather than resolve this issue in a court of law as the Constitution dictates, the Barbees are fighting in an administrative court—a court where the federal executive branch serves as the prosecutor, judge, and jury. 

Federal agencies like the U.S. Department of Labor, Environmental Protection Agency, and the Securities and Exchange Commission use these administrative courts to arbitrate often eye-watering fines the government levies against small businesses. These agency courts don’t have actual judges or juries, nor do they square with the Constitution. In fact, real federal courts are starting to question the constitutionality of these fake agency “courts,” and that includes the U.S. Supreme Court, which is set to consider whether these agency courts violate the Seventh Amendment in SEC v. Jarkesy this term. 

“At IJ, we’re representing a number of businesses that have been targeted for tens or even hundreds of thousands of dollars in fines, mostly for paperwork mistakes, and that have been forced to defend themselves in agency courts,” said Rob Johnson, a senior attorney at IJ. “If the government wants to crush your business with fines, at the very least it should have to give you a hearing in a real court, with a real judge, where you can see a jury of your peers. Trial by bureaucrat isn’t good enough.”   

Whether it’s the Barbees, Chuck Saine and his landscaping business, or Joe and Russell Marino and their farm, Americans have a constitutional right to have a judge and jury decide whether they broke the law, and if so, what the appropriate penalty is. But as IJ forces the judicial system to question the constitutionality of these agency “courts,” Americans face another challenge—will courts and judges uphold their duty to check the government’s power and protect our constitutional rights? These days, courts have become more willing to forego their duty to safeguard our constitutional liberties. Too often courts are siding with the government in cases of government overreach or outright abuse.  

IJ is working to educate the public about this issue through its Center for Judicial Engagement (CJE). Through research, visiting colleges and law schools, podcasts, and more, CJE is changing the public discourse around the courts and encouraging judges to perform more meaningful reviews in constitutional cases more consistently. As Alexander Hamilton once wrote in Federalist No. 78, although “liberty can have nothing to fear from the judiciary alone,” liberty “would have everything to fear” if courts were to unite with the other branches of government.  

“Our rights are just words on pieces of paper if real people don’t act to protect them. And the one branch of government that doesn’t just follow the political whims of the moment, but the timeless truths written in the Constitution is the judiciary,” said Anthony Sanders, director of the Center for Judicial Engagement. “If judges fail to enforce those limits, the whole point of putting our rights in the Constitution is lost.” 

On this Constitution Day, we at IJ believe it’s important for Americans to celebrate the institutions our Constitution created to preserve our liberties, but also to remember that these rights are fragile and must be protected. That’s why IJ exists—to safeguard Americans’ constitutional rights and defend the principles of justice and fairness for all. Courts must also continue to uphold their role in enforcing constitutional restrictions on government overreach.